Facts:
The Petitioner, Hina Haneefa, a transwoman had undergone gender affirmative
surgical procedures and procured a transgender identity card as a female. She had
enrolled as a student in the B.A History course and under the transgender category
and had applied for recruitment to the National Cadets Corps (NCC). She approached
the High Court of Kerala after she was refused admission to the Girls Divisions as she
was a transgender person. A Single Judge Bench of the High Court had granted the
relief sought by the petitioner and directed the University to take the necessary steps
to enroll the petitioner in the NCC while giving the government 6 months’ time to
amend the law and include transgender persons within its scope. This decision was
appealed before a Division Bench of the same High Court.
Court Decision and Reasoning:
The issue before the Court was whether Section 6 of the National Cadet Corps Act,
1948 (‘NCC Act’) barred transwomen from being admitted to the NCC Girls Unit. Under
the NCC Act. Section 6 stated that the recruitment to the Girls Division was to be made
from female students at any university or school. In appeal before the Division Bench,
the Respondents had also argued that the Single Judge could not have issued a writ
of Mandamus directing the Government to amend Section 6 of the NCC Act as this
was a matter of policy to be decided by the Central Government. The Petitioner
reiterated that the exclusion from enrolment was in violation of the provisions of the
Transgender Persons (Protection of Rights) Act, 2019 and the decision in NALSA. The
Division Bench of the High Court relied on the definitionsof ‘inclusive education’ under
Section 2(d) and ‘transgender person’ under Section 2(k) as well as the provisions on
self-determined gender identity under Sections 4 to 7 of the Transgender Persons
(Protection of Rights) Act, 2019 to hold that the Petitioner was entitled to be enrolled
in the NCC under the girls’ division. The Court observed that the Petitioner had met
all the conditions stipulated under the Transgender Persons (Protection of Rights) Act,
2019, Section 7 to identify as female, including having undergone surgical
intervention. The Division Bench noted that the Single Judge Bench had erred to that
extent as no constitutional court can mandate the legislature to enact a particular law.
The Court issued a recommendation to the government to take necessary steps to
include transgender persons within the scope of Section 6 of the NCC Act.
Significance: This was a positive judgement with respect to inclusion of trans persons
under the NCC, and while the Division Bench upheld the inclusion of the trans student
into the NCC, it ought not to have set aside the direction of the Single Judge to amend
the NCC Act to include trans persons.